For us copyright mavens, the recent TVEyes decision laid down by the Federal Appeals Court for the 2nd Circuit (NY) provided some good reading about the limits of “transformative use” as a defense against allegations of copyright infringement.
Spoiler Alert: TVEyes lost. It was found to have been engaged in infringing behavior in the recording and retrieval services it offers.
Court opinions don’t often make for fascinating reading, but this time, Judge Jacobs’ explanation provides a simple and direct means of understanding both the issues in this case and the basis on which the panel reached its decision. Even with Judge Kaplan’s concurring opinion added, the whole document comes in under 32 pages. It’s well worth the time to read it.
Who is TVEyes?
TVEyes is a “media monitoring company that offers a platform enabling users to search, view, distribute, analyze, and archive media content available on television, radio, print, and social media.” It records and collects the broadcasts of more than 1,400 radio and television stations, and provides paid subscribers with two core services: “the Search function” and the “Watch function.”
These are straightforward enough. “Search” enables the user to identify videos containing the words or phrases they are interested in, such as the name of their company, or the head of the regulatory agency they need to listen to, and so on. “Watch” follows along from that logically – having identified the relevant piece of video, the use is then able to watch a clip of that program of up to 10 minutes’ length. This sort of service – media monitoring – can be quite valuable to its clients, who are able to save a lot of time otherwise spent on looking for mentions of their company, its products and the like.
So what’s the problem?
The fact that TVEyes is a for-profit business probably weighed heavily in Fox’s decision to bring the suit. In Fox’s view, TVEyes was making money off of Fox’s programming in an unauthorized manner. Had TVEyes obtained a license, likely in exchange for a substantial fee, they probably could have avoided the charge of infringement. But they went a different route – when challenged, they claimed that theirs was a fair, “transformative” use, and therefore non-infringing. They cited the Google Books case (2009) and with this argument they won at the district court level.
The appeals court reasoned, in effect, that changing TV programs to video clips was not sufficiently transformative to qualify as excusing the infringement under the 1st fair use factor ‘purpose and character of the use’. And further, that whatever weight might be given the first factor was overwhelmed by that of the fourth factor, the actual and potential effect of (Fox’s) market for its TV programming.
In a blog post last year, I touched on the legal concept of transformative use in copyright law. It is a little complicated, and we can’t do it justice here. But the Supreme Court did explicitly apply it in the “Oh, Pretty Woman” case (Campbell v. Acuff Rose), and it also came up in the Google Books and HathiTrust cases, as it has with increasing frequency since.
As applied in those cases, transformative use occurs when a work, or a corpus of works, is repurposed in ways unenvisioned by the creator for its original setting. When justified, this is accepted as a non-infringing use. For example, when Google does a word-count analysis for the term “deconstruct”, across all 20th-century text that they have access to – that sort of analysis is only possible by chewing through the full-text of works themselves. It’s not what an author would have had in mind, and it is not a replacement for the works themselves. Transformative use is perhaps best seen as a corollary, or logical extension, of the 1st factor.
Interestingly enough, the judges in the TVEyes decision make a distinction of the reasoning in the GBS case, and find TVEyes was lacking as to transformative-ness: “This appeal shares features with [this same court’s] decision in Authors Guild v. Google … [We] cautioned that the case “tested the boundaries of fair use” We conclude that defendant TVEyes has exceeded those bounds.”
In the wake of the TVEyes decision (and its explanation of the court’s own Google Books case), transformative use is perhaps best seen as a parameter which can contribute to the analysis required under the first fair use factor – that is, “What really is the purpose of the use and how does it compare to the purpose of the original use?” – rather than being treated as the entirety of the analysis itself, as too many courts had incorrectly done in recent years. As the decision clarifies “At bottom, TVEyes is unlawfully profiting off the work of others by commercially re-distributing all of that work that a viewer wishes to use, without payment or license.” And you can’t do that.
An opposing view
In the view of EFF, this is a terrible, poorly-reasoned decision. Well, they are welcome to that view.
On the contrary, what I like about this court’s opinion is the careful way in which it lays out the limits of a proper application of a defense argument relying on transformative use. Transformative use shouldn’t be used as an “express lane” to excuse any sort of infringing activity that occurs to a company to engage in.
What the TVEyes decision indicates is that a more thoughtful organization will carefully consider each of the four fair use factors, first separately and then together (because the case law emphasizes that they have different weights in different circumstances), before reaching a conclusion that it is perfectly fine to ingest other people’s stuff and then redistribute it for its own benefit without seeking and obtaining some form of authorization.